06/21/2004

Here's a news story related to the question of Muslim marriage contracts and how they are or are not upheld under American law, which is discussed in the Muslim marriage contracts category of the blog. You may wish to read the other entries in the category for more legal background and perspectives on this issue. From the Chicago Sun-Times:
Will County judge OKs dowry pledged in Muslim law
June 20, 2004
BY DAVE NEWBART Staff Reporter

08/05/2003

Ikram Saeed let me know about No Altars: A Survey of Islamic Family Law in the United States, a law review article by Asifa Quraishi and Najeeba Syeed-Miller. The article is quite long and I'm still reading it myself, but it looks to be an excellent resource.
I haven't updated this blog in awhile, as I've been busy at my paralegal internship. The internship is now drawing to a close, so I should have a bit more time, inshallah.
One of my projects for my internship was to write a memo that provides an overview of immigration status categories. The memo will be for the use of volunteers staffing a legal information and referral line, to aid them in explaining basics of immigration law to callers. I've submitted the paper to my supervisor and expect to receive a copy from her for my portfolio in the next few days, inshallah. When I do, I hope to post the memo here since immigration law is a major area of concern for Muslims in the United States.
Speaking of immigration law, I am applying for a volunteer paralegal position with the Northwest Immigration Rights Project, a non-profit organization that provides legal representation to low-income immigrants in emergency circumstances (facing deportation, seeking to escape an abusive marriage, applying for asylum, etc).
This should be an excellent professional opportunity for me, inshallah, and should also hopefully provide me with plenty of new topics to post to this blog about

05/30/2003

Marriage is not simply a private contract between two individuals but also has to be registered with the state and meet certain requirements. If these requirements are not met, the state may find that no real marriage ever existed. This may be a problem for the woman in particular, since she has no claim to any property gained during the alleged marriage (in a community property state) or any type of alimony after a divorce. This is especially true if the state does not recognize common law marriage.
I found two cases involving Muslims that illustrate these problems. The first is In re Marriage of Vyronis, 202 Cal. App. 3d 712 (1988). This case involved a type of marriage permitted by Shi'ite Muslims called mut'a or temporary marriage. Mut'a is not permitted by Sunni Muslims, who make up about 85% of all Muslims. Temporary Marriage in Islamic Law is a Shi'ite article explaining the rules of mut'a.
In Vyronis, Speros Vyronis (a non-practicing Greek Orthodox Christian) and Fereshteh, an Iranian Muslim, made a mut'a marriage. Fereshteh was not familiar with American law and thought that the marriage would be recognized as valid since Vyronis told her it was. It was only when she filed for divorce that she discovered the truth. She then attempted to claim status as a "putative spouse" on the grounds that she had a good faith belief that she and Vyronis really had been married. This was the issue before the Court of Appeals of California. The court looked at the circumstances of the marriage and found it that it would be "unreasonable" for Fereshteh to think that her mut'a marriage was a valid California marriage:
In sum, the alleged private marriage went unsolemnized, unlicensed and unrecorded. Thereafter, the parties did not cohabit, or hold themselves out as husband and wife, and in no way approximated the conduct of a married couple. Because the facts were at odds with the formation and existence of a valid marriage pursuant to California law, Fereshteh could not rely on Speros's statements reasonably to believe she was married. Notwithstanding Fereshteh's sincerity, her belief was unreasonable and therefore not in good faith.Vyronis, supra at 722.
It's interesting to read some of the factors the court considered. For instance, they noted that Fereshteh "did not use Speros's surname". I guess this was a still a significant factor even in 1988 California! Feminists might be surprised by this one.
Actually, Muslim women in many cultures do not take their husbands' surnames and some Muslims actively believe that they should not do so because the Quran says that children should be named after their fathers (Quran 33:5; however in context the verse seems to mean not to name adopted children after their adoptive families but they should keep their original names).
Another factor cited by the court is that "the parties did not commingle their finances". In an Islamic marriage, the property that the wife brings to the marriage is kept separate so that it is under her exlusive control. The husband supports the family entirely out of his own finances (if the husband fails to provide, the wife can take the money without his permission, according to a ruling of the Prophet Muhammad, peace be upon him). Thus the husband and wife keep separate finances.
A third point that the court mentioned is "nor did they assume any support obligations for one another". This is one of the unique characteristics of mut'a marriage and one of the reasons that Sunni Muslims don't permit it. Mut'a does feature a mahr, but the husband does not provide any support during the marriage and the husband and wife do not have any inheritance rights on each other as in a normal marriage (a widowed spouse is always entitled to some fraction of the deceased's estate under Islamic inheritance law). Mut'a is called "temporary marriage" because the marriage is made for some fixed period of time. The marriage ends automatically at the end of that time unless the contract is renewed so there is no divorce (it's not clear from the court's opinion what the term on the mut'a was here or if this factor was considered) and therefore the wife does not get any divorce provision either.
Given that Sunni Muslims don't recognize mut'a as a valid marriage, maybe it's not suprising that the California Court of Appeals didn't either. I tend to think that the courts should recognize any private contract between two people and enforce the terms of that contract; but Fereshteh wasn't due any money from Speros under the mut'a contract anyway.
This is definitely an unusual case.
The second case that I found was Farah v. Farah, 16 Va. App. 329 (1993). Here, the couple were married in England through a proxy ceremony. This type of marriage is valid under Pakistani law. It doesn't meet the requirements of English marriage law; I don't know if an English court would recognize it under comity as it recognizes marriages performed in Pakistan under Pakistani law.
The Court of Appeals of Virginia refused to recognize the marriage because it said that the marriage has to be valid under the laws of the country where it is celebrated. Since the marriage was celebrated in England, the court looked to see if the proxy marriage was valid under English law and it wasn't.
The lesson from Vyronis and Farah seems to be not to make private marriage contracts. Like I said, I think this is unfortunate. Any other contract that a man and a woman make would be upheld, so why not a contract of marriage?

05/27/2003

Thanks to Muslim lawyer Abed Awad, New Jersey courts have begun taking a new approach to mahr cases. The ground-breaking case is Odatalla v. Odatalla, 355 N.J. Super. 305 (2002).
The key is to look at how the mahr is regarded in Islamic law, rather than trying to fit a Muslim marriage contract or mahr agreement into existing categories in American family law. A mahr agreement is not a prenuptial agreement. As the fiqh article I linked to in the first post of this series makes clear, a Muslim marriage contract is valid without specifying a mahr.
Instead, the mahr agreement is a separate arrangement between the married couple. As the Superior Court of New Jersey wrote in the Odatalla decision:
Clearly the Mahr Agreement in the case at bar is nothing more and nothing less than a simple contract between two consenting adults. It does not contravene any statute or interests of society. Rather, the Mahr Agreement continues a custom and tradition that is unique to a certain segment of our current society and is not at war with any public morals.
The rules governing simple contracts between two consenting adults are much more lenient than those governing prenuptial agreements. This makes it much more likely that the mahr agreement will be upheld. Awad has successfully used this approach in several other cases to have the courts uphold Muslim mahr agreements. See Groundbreaking Ruling Recognizes Islamic Marriage Agreement and Muslim Mahr.
Awad has also written a law journal article, Court Enforces Mahr Provision in Muslim Marriage Contract, for the New Jersey Law Journal. The article is published here at The Niqabi Paralegal by permission of the author.

The mahr is generally specified in the marriage contract itself. The contract may contain other conditions and stipulations governing the marriage, with particular attention to the rights of the parties to seek divorce and the money due to the woman in the event of divorce or death of the husband.
Because of this, the Muslim marriage contract has generally been treated by the American courts as a prenuptial agreement. This is true even if the marriage contract mentions only the mahr and not any other provisions. After all, by custom the bulk of the mahr is to be given only in the event of divorce.
This is where Muslims may run into trouble. Each state has its own requirements for prenuptial agreements and the Muslim marriage contract may not meet these requirements (especially if it was made in another jurisdiction or even another country). Some courts have also held that the postponed mahr creates an incentive for the woman to initiate divorce, which these courts say is contrary to public policy.
Aside: This is a misunderstanding of Islamic divorce law. Under Islamic law, a woman may seek divorce for cause (Quran 4:128) or in what Americans generally call "no fault" divorce (khula, Quran 2:229). If she seeks divorce for cause, she retains the mahr. However, if she wants a khula (no fault) divorce, she has to give the mahr back. So under Islamic law there is no "incentive" for the woman to seek divorce in order to claim the mahr.
Because the marriage contract is treated as a prenuptial agreement, the Muslim couple are at the mercy of the courts, who may decide that the contract is not a valid prenuptial agreement, or that it contains provisions contrary to "public policy".
This puts women in a difficult position. The mahr is theirs by right once the marriage is consummated, but they may be denied it because it is treated as a sort of divorce provision. A Muslim woman in America is taking a gamble in agreeing to postpone the mahr until divorce.
Muslim Marriage Contract in American Courts discusses these and related issues.
I searched state case law with Lexis and found several cases concerning the mahr. In Aziz v. Aziz, 127 Misc. 2d 1013 (1985), the Supreme Court of New York for Queens County upheld the mahr provision, stating that the Muslim marriage contract was valid. This opinion also discusses why the courts have the power to enforce secular provisions in contracts, even if the contracts are entered into as part of a religious ceremony. In Akileh v. Elchahal, 666 So. 2d 246 (1996), the Court of Appeal of Florida overturned a lower court decision and upheld a mahr provision.
However, in In re Marriage of Dajani, 204 Cal. App. 3d 1387 (1988), a California appellate court declared the Muslim marriage contract invalid as a prenuptial agreement and did not enforce the mahr provision.
A recent ruling from New Jersey suggests a new approach, which will be discussed in the next blog entry, inshallah.

One of the requirements of marriage under Islamic law is that the man gives the woman a dower, a gift of money. The dower is usually called mahr although other terms are used as well, particularly sadaq or saduq.
The mahr is the woman's separate and exclusive property and cannot be touched by her husband at any time during the marriage without her express consent. It remains her property in the event of divorce or death of the husband.
The woman's right to the mahr is created when she and the man sign a marriage contract and is perfected after the marriage is consummated. If the couple divorce before consummation and the mahr has not been given, it does not need to be given (Quran 2:236). However, if the couple divorce before consummation and the mahr has been given, the woman is entitled to half (Quran 2:237). Once the marriage is consummated, the mahr becomes the woman's exclusive property (Quran 4:4).
To the best of my knowledge, although it is not a requirement of Islamic law, the custom has developed in many Muslim cultures that the mahr is divided into two parts, the prompt and the postponed. The prompt mahr is given at the time that the marriage contract is signed. It is usually a token amount (e.g., $1). The postponed mahr will be given later. The custom is that the couple agree that the postponed mahr will become due if the couple divorce. Very often, the postponed mahr is a substantial amount (e.g., $50,000). The idea is that the man will be reluctant to divorce when he has to pay all this money. Since the husband is obligated to provide complete financial support for his wife during the marriage, she has no need of the mahr during that time. Instead, it serves as security for her after the divorce.
It should be kept in mind, however, that the mahr can only be postponed to divorce by the consent and agreement of the woman. If she chooses to demand the full mahr after the marriage is consummated, she may do so. It is her right.
The Mahr provides a brief overview of what Islamic law says about the mahr.